When Things Change

Wikipedia has an article describing the six times Republican politicians suggested impeaching Barack Obama, the most serious of which was a hearing by the House Judiciary Committee "formally titled 'The President's Constitutional Duty to Faithfully Execute the Laws,' that has been viewed as an attempt to begin justifying impeachment proceedings".

None of these have gone anywhere and there is clearly no present momentum behind the project, as suggested by the absence of a groundswell for a petition to impeach the president and a dearth of newspaper articles suggesting the same. The process itself, as described by Wikipedia, is surprisingly simple. Any party with a majority in the lower house can start it.

At the federal level, the impeachment process is a two-step procedure. The House of Representatives must first pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or allegations. Upon passage, the defendant has been 'impeached'. Next, the Senate tries the accused. In the case of the impeachment of a president, the Chief Justice of the United States presides over the proceedings.

But nobody's tried. This despite the fact that president Obama is arguably more unpopular, less successful and confronting a crisis much greater than Richard Nixon, Lyndon Johnson or Bill Clinton. The usual explanation is that since the Democratic Senate will not convict, there is no point in a Republican lower house bringing charges.

But two alternative explanations are equally simple. The first is that John Boehner won't risk his speakership no matter what and second, the perception among some that Obama unlike Johnson or Nixon, would turn any challenge to his presidency into a Constitutional crisis. Nixon resigned rather than divide the country. No such grace can be expected from Obama, or so the argument goes.

The reality of these objections was confirmed by interest in a newly developed avenue for challenging presidential overreach through the courts. A Wall Street Journal article described an approach developed by Elizabeth Price Foley which avoids the dangers of an existential challenge to the president by nickel and diming the disputes.

President Obama is setting a dangerous precedent by suspending his enforcement of laws on health care, immigration, drugs, banking and so much else, but the courts may soon be asked to throw a brushback pitch....

Mr. Obama’s practice of unilaterally waiving his duty to faithfully execute statutes has been abetted by a presumed lack of legal “standing” to contest his suspension. To the extent individuals have not suffered concrete injuries that the courts traditionally redress, he feels he can act without consequence to create whole-cloth regulatory regimes. This makes the inherent Article I powers of Congress irrelevant, with perhaps permanent damage to the separation of powers and political accountability. If Mr. Obama gets away with it, the next President probably will too.

But Congress may yet have a way to challenge this usurpation in court. The Washington constitutional litigator David Rivkin and Florida International University law professor Elizabeth Price Foley have developed a legal theory that would allow for judicial review to resolve this dispute between the political branches on the merits. Members of Congress as individuals cannot sue as individuals over passing political disputes. But when the President is usurping core legislative powers, Congress as an institution can sue to vindicate this constitutional injury.

Short of impeachment, there is no other way for Congress to defend its rights, and the Rivkin-Foley case is narrow and limited—and should survive judicial scrutiny. The idea has secured the interest of the GOP leadership, which may soon authorize a House-led lawsuit.

However Foley's approach means Boehner's role becomes even more pivotal, for clearly no judicial or constitutional challenge to Obama can go forward without the speaker. That might actually suit the Boehner's book since as the Obama presidency sinks deeper into crisis, it makes the president more dependent on the speaker keeping the challenge door shut.

The problem with the "Obama is unimpeachable" argument is that he has already been impeached as Leader of the Free World. Any observer of Obama's collapse will have noted his marginalization in international councils.

Britain flatly refused to go along with him in enforcing a Red Line in Syria. Angela Merkel now arguably the central Western figure in the Eastern European crisis. Japan has been slowly taking over the job of anchoring the Pacific alliance. Perhaps nowhere is Obama's diminished stature so obviously underscored as in today's headlines: "Iraq turns to Iran for help ..."

In Kyrgyzstan: (completed) South Korea, Kyrgyzstan, Russia, United States

Bush even had UN and Congressional authority for his actions (which Hillary voted for). By contrast Obama's 2011 Military Intervention in Libya was undergirded by a far narrower set of allies and was undertaken with only UN approval. Now, as al-Qaeda overruns the Middle East six years into his administration, Obama could not even dream of gathering such a coalition again. He's not even welcome in Cairo any more. Long time ally Israel's Prime Minister reportedly loathes him. Russia's top officials have even refused to take the Secretary of State's and the Secretary of Defense's calls.

Obama's new coalition is the coalition of anyone who will talk to him; whoever will still listen to him. Right now he's trying to get Iran to join up with him but hasn't worked it out. Things have reached the level of the absurd. U.S. considers air strikes, action with Iran to halt Iraq rebels says one headline, meaning if the IRG will attack, the USAF will support.

Of course everybody knows that if Iraq is saved it will be Iran's for the taking. They make war for oil. Obama will get a cheap bottle of wine, a note of thanks and shown the door, which is the fate of junior partners. Obama is now running in rings around a table; against Iran's nukes one moment, but allying with them in Iraq the next; against ISIS in Iraq, then supporting them in Syria. He has truly become all chumps to all men. In the event the door to Iranian cooperation has been slammed shut. But just how desperate the administration was indicated by their willingness to chance it.

The strongest argument for starting an impeachment process against Obama is that his presidency is going to collapse anyway and Republic will need a process to deal with that contingency whether Boehner likes it or not. Boehner's only choice is whether he will be ready on the day. Maybe there are not enough votes to convict Obama in the Senate today, but in two month's time there may well be and there needs to be a venue to cast them.

Year ago I read an account of an North Vietnamese Army commander preparing for a possible attack by American airmobile troops on his mountain base which has stuck in memory. The NVA colonel positioned his bunkers and potential fields of fire strictly in accordance with topography and without regard to existing obstructions like dense forest, brush, stands of bamboo.

When one of his non-commissioned officers objected that his units machine guns were being pointed at a wall of impenetrable bamboo, the NVA colonel answered that the bamboo would vanish after American fire support had finished preparation. Only the mountain would remain and therefore the fields of fire anticipated accordingly. He prepared for the battlefield as it would be and not as it appeared at present.

There should not be an inordinate fear Obama will pull the temple down with him. Even those who ascribe the worst motives to the president should consider that his potential for hypothetical mischief is at an historic ebb. Obama has shrunk himself by his ineptitude. The most dangerous presidents are militarily successful ones. Napoleon knew that dictators perched on glory. So long did Napoleon's victories last, so long did his power survive. Caesar could challenge the Senate only because he was the conqueror of Gaul. Bush reduced himself significantly by failing to decisively win in his War on Terror. Yet he was Alexander by comparison to Obama who has nothing to show after six years of office but a few hundred of holes of golf and half-written agreements with nobody in particular.

Thus the best course is to trust the Constitution. As the Obama presidency collapses, the system will rely on the established process to save the presidency and the republic from his mistakes. That's what it's for. This doesn't mean the Republicans should go out right now and the file impeachment charges they've been threatening for so long. But they shouldn't rule it out out of some excessive political caution. Out of some fear that Boehner won't get invited to cocktail parties that nobody will soon want to go to anyway. Tom Paine wrote at a time when surrender to the British seemed advisable about how a crisis clarified options and how they created opportunities.

These are the times that try men's souls ... Whether the independence of the continent was declared too soon, or delayed too long, I will not now enter into as an argument ...

Yet panics, in some cases, have their uses; they produce as much good as hurt. Their duration is always short; the mind soon grows through them, and acquires a firmer habit than before. But their peculiar advantage is, that they are the touchstones of sincerity and hypocrisy, and bring things and men to light, which might otherwise have lain forever undiscovered....

Delaying an impeachment initiation for too long may actually by increasing the danger, since it can hardly be invoked if Obama gets himself into too deep a hole. It has to precede the acutest stage. Imagine for example that American forces are trapped in Afghanistan and attempting to fight their way out. Could Boehner impeach in such a crisis? Probably not. The president could retort: 'this is not the time for partisan bickering. We must stand together.' And in a sense he would be right. Timing impeachment is like timing ejection from crippled jet fighter. Punch out too early and you lose the chance of saving the plane. Punch out too late and the chute won't open in time to even save the pilot.

It has become easy to blame Barack Obama solely for the catastrophes of recent days. Events of the last few weeks have shown how rapidly collapse can come. But in fairness the problem is rooted not only in the feckless behavior of the White House, but also in the short sighted passivity of the Republican Party. The Founders knew there would be times like this. There would be incompetent presidents and "times that try men souls". But they never imagined that the denizens in Washington would grow so timid they would actually refuse to open the emergency exit provided, even as a precaution.

The principal danger in Washington now lies in the seemingly unshakable conviction among its denizens that it remains and will always be, business as usual; in the belief that the forests will always block the ridge; that the bamboo grove forever obstruct the plateau. The peril lies in the idea that the DC universe is forever. One day the bamboo will splinter away, but the men at the top are often the last to know.

Recent items of interest by Belmont readers based on Amazon click-throughs.

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